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United States v. Livingston

United States District Court, M.D. Pennsylvania

November 7, 2014

UNITED STATES OF AMERICA,
v.
DESHAWN LIVINGSTON, Petitioner.

MEMORANDUM

CHRISTOPHER C. CONNER, Chief District Judge.

Presently before the court in the above-captioned matter is petitioner DeShawn Livingston's ("Livingston") pro se motion (Doc. 515) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, [1] alleging ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. For the reasons that follow, the court will deny Livingston's motion in its entirety.

I. Factual Background and Procedural History

On February 25, 2009, Livingston was indicted for (1) criminal conspiracy in violation of 18 U.S.C. § 371; (2) Hobbs Act robbery in violation of 18 U.S.C. § 1951; (3) possession of a firearm in furtherance of crimes of violence in violation of 18 U.S.C. § 924(c)(1); and (4) possession of a firearm by a felon in violation of 18 U.S.C. § 922(g). (Doc. 1). On March 17, 2009, Livingston entered a plea of not guilty to all charges. (Doc 56).

On August 17, 2010, Livingston proceeded to a jury trial. (Doc. 502). The jury returned a guilty verdict on August 26, 2010 on all counts. (Doc. 403).[2] On January 13, 2011, the court sentenced Livingston to 461 months' imprisonment, $5, 000 restitution, and five years of supervised release. (Doc. 466). On January 18, 2011, Livingston appealed his conviction and sentence on several grounds, including the denial of his motion to suppress. (Doc 467). The Third Circuit Court of Appeals denied the appeal and affirmed the court's judgment on September 27, 2011. (Doc. 506); see United States v. Livingston, 445 F.Appx. 550 (3d Cir. 2011) (nonprecedential). Livingston filed a petition for writ of certiorari, which the United States Supreme Court denied on April 30, 2012. See Livingston v. United States, 132 S.Ct. 2100 (2012) (mem.).

On May 2, 2013, Livingston timely filed the instant motion (Doc. 515) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the basis of ineffective assistance of counsel.[3] The court denied in part Livingston's motion, disposing of three ineffective assistance of counsel claims. (Doc. 551). The court deferred ruling on Livingston's fourth ineffective assistance of counsel claim regarding the alleged failure of Livingston's trial counsel to engage in plea negotiations, pending an evidentiary hearing. (Id.) An evidentiary hearing was held on May 28, 2014. (Doc. 568). The remaining ineffective assistance of counsel issue has been fully briefed and is ripe for disposition.[4]

II. Legal Standard

A petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255 is the appropriate vehicle by which a defendant in federal custody may challenge the legality of a conviction or sentence. See 28 U.S.C. § 2255; In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). When reviewing a motion to pursuant to § 2255, the court must accept the truth of the petitioner's factual allegations unless clearly frivolous based on the existing record. See United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (quoting Gov't of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)).

The Sixth Amendment right to counsel is the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In Strickland, the Supreme Court articulated a two-prong test in assessing whether a petitioner has been denied the effective assistance of counsel. Id. at 687-88. A petitioner must demonstrate: (1) that his or her counsel's representation "fell below an objective standard of reasonableness" and (2) that such defective performance caused the petitioner prejudice. See id.

In evaluating the first prong of the Strickland test, the court must be "highly deferential" toward counsel's conduct. Id. at 689. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id . ("It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable."). "Strickland and its progeny make clear that counsel's strategic choices will not be second-guessed by post-hoc determinations that a different trial strategy would have fared better." Rolan v. Vaughn, 445 F.3d 671, 681-82 (3d Cir. 2006) (citing Strickland, 446 U.S. at 689). Notably, courts will not deem counsel ineffective for failing to raise a meritless argument. Strickland, 466 U.S. at 691; United States v. Saunders, 165 F.3d 248, 253 (3d Cir. 1999). As the Third Circuit has observed, "[t]o avoid the shoals of ineffective assistance, an attorney's judgment need not necessarily be right, so long as it is reasonable." Gov't of V.I. v. Weatherwax, 77 F.3d 1425, 1435 (3d Cir. 1996) (quoting United States. v. McGill, 11 F.3d 223, 227 (1st Cir. 1993)).

To satisfy the prejudice prong, the petitioner must show that there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id . Moreover, the petitioner must show that he or she had a reasonable likelihood of prevailing on the motion at issue, and having prevailed on the motion, it was also reasonably likely that the result of the trial would have been different. See Thomas v. Varner, 428 F.3d 491, 502 (3d Cir. 2005).

To prevail on a claim for ineffective assistance of counsel, a petitioner must satisfy both prongs of the Strickland test. Carpenter v. Vaughn, 296 F.3d 138, 149 (3d Cir. 2002). The inquiry may begin with either the deficient performance or prejudice prong, and the court is not required to consider the second prong of the test if the petitioner is unable to satisfy the first one. Strickland, 466 U.S. at 697.

III. Discussion

In his remaining ineffective assistance of counsel claim, Livingston alleges that his trial counsel prevented him from engaging in plea negotiations. (Doc. 543 at 18-20). The right to effective assistance of counsel extends to the plea negotiation process. Missouri v. Frye, 132 S.Ct. 1399, 1405 (2012) (stating that the right to counsel extends to all critical stages of criminal proceedings, including arraignments, post-indictment interrogations, and entry of a guilty plea). "[A] defendant is entitled to the effective assistance of counsel in determining how to plead." United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir. 1982) (quoting Colson v. Smith, 438 F.2d 1075, 1078 (5th Cir. 1971)). In the context of a guilty plea, counsel must "give a defendant information sufficient to make a reasonably informed decision whether to accept a plea offer.'" Shotts v. Wetzel, 724 F.3d 364, 376 (3d Cir. 2013) (quoting United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992)). A court may find counsel to be ineffective when the advice given is "so incorrect and so insufficient that it undermined [the petitioner's] ability to make an intelligent decision." Day, 969 F.2d at 43. The decision to ...


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